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ERNEST T. DELONG AND DOROTHY DELONG v. ARTHUR MILLER (03/06/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 6, 1981.

ERNEST T. DELONG AND DOROTHY DELONG, APPELLANTS,
v.
ARTHUR MILLER

No. 275 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Berks County, Civil Action-Law, at No. 34 October, 1978.

COUNSEL

Brett A. Huckabee, Reading, for appellants.

Jon S. Malsnee, Reading, for appellee.

Wickersham, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 285 Pa. Super. Page 121]

Appellants contend that appellee is not entitled to summary judgment because he was not immune from suit pursuant to section 205 of the Pennsylvania Workmen's Compensation Act (the Act).*fn1 We disagree and, accordingly, affirm the order of the lower court.

[ 285 Pa. Super. Page 122]

The facts are not in dispute and may be stated as follows. Appellant Ernest T. DeLong and appellee Arthur Miller were both members and, consequently, employees*fn2 of a volunteer fire company in Hamburg. On March 15, 1979, in response to a fire alarm, Miller was driving his personal automobile to the fire house when he struck DeLong, who was directing traffic near the fire house. DeLong, who was fully compensated for his severe injuries pursuant to the Act, commenced this action, alleging that Miller had been negligent. Miller subsequently filed a motion for summary judgment, asserting that he was a co-employee of DeLong at the time of the accident and, therefore, immune from suit under section 205 of the Act. The lower court, concluding that Miller had already entered the course of his employment when he began his journey to the fire house, agreed and granted the motion. This appeal followed.

Appellants contend that Miller is liable as a third party*fn3 for his alleged negligence because he was merely going to work and, consequently, was not an employee at the time of the accident.*fn4 We disagree. Section 205 of the Act provides immunity to an allegedly negligent employee if: (1) the injury is compensable under the Act; and (2) the negligence occurred while the parties were "in the same employ." There is no dispute that DeLong suffered a compensable injury. Thus, we must determine whether DeLong and Miller were "in the same employ" at the time of the accident.*fn5

[ 285 Pa. Super. Page 123]

Although the issue appears to be one of first impression, our cases have held that volunteer firemen injured en route while responding to an alarm are entitled to compensation under the Act. See Brinker v. Greensberg, 409 Pa. 110, 185 A.2d 593 (1962); Badolato v. Berwick Borough, 135 Pa. Super. 416, 5 A.2d 635 (1939); Barclay-Westmoreland Trust Co. v. Latrobe Borough, 131 Pa. Super. 513, 200 A. 271 (1938); Foster v. Borough of State College, 110 Pa. Super. 452, 168 A. 693 (1933); Sames v. Borough of Perkasie, 100 Pa. Super. 402 (1930). These cases recognize that because the unique character of the employment requires prompt reaction to an alarm, a volunteer fireman is in the course of his employment when he leaves his home in response to an alarm. Badolato v. Berwick Borough, supra, 135 Pa. Super. at 422, 5 A.2d at 637; Barclay-Westmoreland Trust Co. v. Latrobe Borough, supra, 131 Pa. Super. at 515-16, 200 A. at 272-73; Foster v. Borough of State College, supra, 110 Pa. Super. at 455, 168 A. at 694; Sames v. Borough of Perkasie, supra at 405-06. See also Nelson v. Borough of Greensville, 181 Pa. Super. 488, 494, 124 A.2d 675, 679 (1956); Foster v. Borough of State College, 124 Pa. Super. 492, 500, 189 A. 786, 789 (1937) (after remand). Thus, had Miller been injured in the accident, his injuries would have been compensable because he would be deemed in the course of his employment while en route to the fire house. The fact that DeLong was injured, and not Miller, cannot change the fact

[ 285 Pa. Super. Page 124]

    that, at the time of the accident, Miller was in the course of his employment. Consequently, we conclude that Miller and DeLong were "in the same employ" at the time of the accident, and, therefore, Miller is immune from suit under section 205 of the Act. Thus, the lower court properly granted Miller's motion for summary judgment.

Order affirmed.


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